In recent years, the legal landscape of sexual harassment in Australian workplaces has witnessed significant developments, underscored by landmark court decisions and legislative changes. These advancements signal a firm stand against workplace sexual harassment and a push towards more robust protections for employees. With a particular emphasis on a positive obligation on employers and managers.
Landmark Decisions in the Federal Court
The Federal Court of Australia’s recent rulings have set precedents against the rising tide of sexual harassment. In the case of Taylor v August and Pemberton Pty Ltd [2023], the court awarded the highest amount of general damages under the Sex Discrimination Act for a sexual harassment claim. An employee, employed by well know jewellery store and brand, Grew & Co, endured persistent unwelcome advances and victimisation from the company’s manager and sole director. The Court’s decision to award $140,000 in general damages and $40,000 for victimisation highlights the severe impact of such harassment on individuals’ mental health and careers.
Sexual harassment needs to be unwelcome conduct of a sexual nature.
In this case, the unwelcome conduct included:
- Text messages declaring his romantic feelings – which were not reciprocated
- When driving the employee home, the manager again brought up the subject of his romantic feelings for her
- Making statements about the employee’s physical appearance including:
- “I like petite curvy brunettes”
- “You have a beautiful body”
- “You have a nice body”
- “You have bedroom eyes”
- Slapping the employee’s bottom
- Giving gifts such as a platinum band and an iPhone
This case resulted in the Sydney jeweller paying a record $268,000 in damages for sexually harassing an employee.
Included in this record damages decision were aggravated damages of $15,000 for amongst other things, the employer’s lawyers:
- making unjustified threats
- alleging manipulative conduct by the employee which led in part to the manager’s actions
- implying that the employee engaged in flirtatious behaviour that gave the manager the impetus to engage in his conduct
The Court made it very clear that the behaviour was a breach of the Sex Discrimination Act 1984 (Cth).
New Sex Discrimination Commissioner Powers
From December 12, 2023, the Sex Discrimination Commissioner will have new powers to enforce compliance with the positive duty under the Sex Discrimination Act 1984. These powers are part of a broader initiative to support cultural change towards safer, respectful, and fairer workplaces in Australia.
The positive duty under the Sex Discrimination Act requires Employers and people managers to take reasonable and proportionate measures to eliminate, as far as possible, sex discrimination, sexual/sex-based harassment, conduct conducive to a hostile workplace environment, and acts of victimisation against complainants, and whistle-blowers.
The Commissioner will ensure that organisations and businesses comply with their new positive duty obligations, which were introduced in December 2022. This duty imposes a legal obligation on organisations and businesses to take proactive and meaningful action to prevent relevant unlawful conduct, including sexual harassment, from occurring in the workplace or in connection to work.
Here is a list of some of the new powers:
- Enforcing Compliance with Positive Duty: The Commission will have the power to ensure that organisations and businesses comply with their obligations under the positive duty. This involves taking proactive steps to prevent sexual harassment, sex discrimination, and other relevant unlawful conduct in the workplace.
- Supporting Cultural Change: The Commission will work towards fostering safer, more respectful, and fairer workplaces across Australia. This includes promoting a shift in workplace culture to actively prevent instances of sexual harassment and discrimination.
- Inquiry into Complaints: Apart from completing the Positive Duty Form, the Commission will continue to inquire into and conciliate complaints about discrimination and breaches of human rights.
- Receiving and Analysing Reports: From December 2023, the Commission will receive reports through the Positive Duty Form regarding concerns about an organisation’s or business’s compliance with the positive duty. This form allows individuals to report experiences or observations of sexual harassment and related victimisation in connection with work. This could include “naming and shaming” in publications.
- Data Analysis and Resource Allocation: The Commission will analyse the information received through the Positive Duty Form to shape inquiries into organisations and businesses. This data will also be used to decide where to focus resources to bring about meaningful cultural change.
- Privacy Compliance: The Commission will handle all the information it receives in line with its privacy obligations, ensuring the confidentiality and protection of individuals who report instances of discrimination or harassment.
The Commissioner has even flagged the possibility of somehow affecting bonuses and pay outcomes for executives if there are too many instances of non-compliance and breaches.
The Importance for Human Resources and Employers
These legal developments are part of a broader societal shift towards better addressing and preventing sexual harassment in the workplace. The Australian Human Rights Commission’s 2022 national survey revealed that one in three Australians had experienced sexual harassment at work in the previous five years. However, less than one in five victims formally reported these incidents, highlighting the need for more accessible and supportive reporting mechanisms.[1]
Looking ahead, this case and legislative changes are expected to encourage a continuation of significant damages being awarded in successful sexual harassment claims.
These statistics underscore the urgent need for effective measures to combat sexual harassment in Australian workplaces. They highlight not only the prevalence of the issue but also the variety of forms it can take. As legal cases demonstrate, employers who fail to address sexual harassment can face substantial legal and financial consequences. This necessitates a proactive approach by employers to create safe and respectful work environments, underpinned by clear policies and robust reporting mechanisms.
Some of the standards set out include:
(i) Leadership – Senior leaders should possess updated knowledge of their legal responsibilities and what constitutes relevant misconduct, the process to deal with it as they bear ultimate responsibility and liability for the governance and legal adherence of the Employer. Training and education as well as due diligence training on newer areas such as Psychosocial Hazards is integral. The NB Employment Law team run workshops for leadership teams and is one of the first steps taken to mitigate risk and liability. A video on these services can also be found here.
(ii) Culture – Employers should nurture an environment that promotes safety, respect, and inclusivity, valuing diversity and gender equality. This environment empowers employees to report relevant illegal behaviour, reduce harm, and hold individuals accountable for their actions.
(iii) Knowledge – Organisations should create, communicate, and implement a policy addressing relevant illegal behaviour and supporting employees in engaging in safe and respectful conduct. Training workshops not only for managers but also all staff will need to be different but must hit the certain tone you need – that is to get across that there is also personal liability and consequences for this type of misconduct.
(iv) Risk management – Employers should adopt a “risk-based approach” to prevent and address relevant illegal behaviour, acknowledging that such behaviour jeopardises the psychological and physical well-being of employees and their rights to equality, non-discrimination, and human dignity. This approach should consider the Australian Human Rights Commission’s Guidelines for Complying with the Positive Duty Under the Sex Discrimination Act.
(v) Support – Employers should ensure that appropriate assistance is readily available to employees before, during, and after an incident involving relevant misconduct.
(vi) Reporting and response – Employers should guarantee that employees have access to both formal and informal channels for reporting and addressing sexual harassment.
(vii) Monitoring, evaluation, and transparency – Employers should gather relevant data to regularly assess and enhance workplace culture. They should also be transparent about the nature and scope of misconduct within their organisation
[1] https://www.abs.gov.au/media-centre/media-releases/17-million-australians-sexually-harassed-2021-22
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Written By
Director
About the Author
Jonathan Mamaril leads a team of handpicked experts in the area of employment law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.
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